Bushie and Harriet

By Mary Lynn F. Jones, AlterNet. Posted October 4, 2005.

Just hours before the Supreme Court began its new term on Monday with Chief Justice John Roberts at its helm, President Bush nominated White House Counsel Harriet Miers to succeed retiring Justice Sandra Day O'Connor, launching a confirmation fight over the court's critical swing seat.

In announcing his choice, Bush praised the 60-year-old Miers as a "pioneer in the field of law, breaking down barriers to women that remain ... a generation after President Reagan appointed Justice O'Connor to the Supreme Court."

Bush has under been pressure, including from first lady Laura Bush, to name a woman to succeed the court's first female justice since O'Connor announced her retirement in July. Last week, Bush hinted he might choose a woman by stating that "diversity is one of the strengths of the country." Miers's name soon emerged as a possible successor to O'Connor.

The timing of Miers's nomination is critical for several reasons. With the court's first oral arguments held Monday and O'Connor anxious to step down to care for her husband, who suffers from Alzheimer's disease, the court may have to rehear cases on which it is split 4-4 after O'Connor leaves but before it issues an opinion. O'Connor has pledged to stay on the court until her successor is confirmed. When Justice Clarence Thomas succeeded Justice Thurgood Marshall in 1991, the court heard arguments again in two cases before handing down a decision.

Senate Majority Leader Bill Frist, R-Tenn., said in a statement Monday that he would like the chamber to vote on Miers's nomination by Thanksgiving. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., appeared to back away from a specific date, however, saying, "To the extent we can meet a timetable we will, but thoroughness will be our principal goal."

Bush's announcement also comes as Republicans are anxious to push damaging headlines from the nation's front pages. Last week, Rep. Tom DeLay, R-Texas, stepped down from his post as House majority leader after he was indicted on a criminal conspiracy charge related to campaign donations. This week, he was indicted on a second charge of money laundering. Federal prosecutors and the Securities and Exchange Commission are looking into the questionable timing of a stock sale by Frist. In addition, New York Times reporter Judith Miller revealed publicly last week that Cheney Chief of Staff "Scooter" Libby was her source in reporting on CIA agent Valerie Plame.

The president finds himself in a somewhat stronger position than when he nominated Roberts to succeed the late Chief Justice William Rehnquist on September 5. Then, Bush was battling public anger over the government's slow response to the aftermath of Hurricane Katrina. Bush took pains to appear more engaged personally as the Gulf Coast braced for Hurricane Rita.

Some Republicans greeted Miers's nomination enthusiastically. Republican National Committee (RNC) Chairman Ken Mehlman said Miers is "extraordinarily well-qualified to serve on the Supreme Court." Frist called Miers "an outstanding nominee" who "understands the importance of judicial restraint and the limited role of a judge to interpret the law and not legislate from the bench."

Frist also said he hopes senators can reach a decision on Miers "without probing into confidential and privileged documents." That means Miers's writings in the Bush White House -- as counsel, deputy chief of staff and staff secretary -- may be off-limits to committee members.

Others, however, said Bush missed a chance to move the court permanently rightward. RedState.org Founder and Director Mike Krempasky wrote Tuesday, "Mr. President, you've got some explaining to do. And please remember -- we've been defending you these five years because of this moment."

For their part, Senate Democrats responded cautiously, making clear they want to examine Miers' work both in Washington and in Texas, where she served as general counsel to Gov. Bush's 1994 transition team, as chairwoman of the Texas Lottery Commission and as a private attorney. Because Miers has never served as a judge, she does not have a lengthy public paper trail.

Senate Judiciary Committee Member Edward Kennedy, D-Mass., said in a statement Monday, "The record we have so far is simply insufficient to assess the qualifications of this nominee. While her resume lists impressive qualifications as a practicing attorney, it simply does not give the Senate -- or the public -- sufficient information to determine her qualifications to be a Supreme Court justice and her commitment to core constitutional values."

And in an apparent role reversal of their positions on Roberts -- who the Senate confirmed as the nation's 17th chief justice last week by a vote of 78 to 22 -- Senate Majority Leader Harry Reid, D-Nev., seemed to praise Miers while Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., raised questions about her nomination.

Reid said he likes Miers, whom he called "courteous and professional," and noted that the court would benefit from the experience of someone who has been a practicing attorney. "A nominee with relevant non-judicial experience would bring a different and useful perspective to the court," he said. Reid's words quickly appeared as part of an RNC release.

Leahy, who backed Roberts' nomination, said he does not know Miers well, having only met her recently. "What I do know," he added, "is that she has a reputation for being loyal to this president, whom she has a long history of serving as a close advisor and in working to advance his objectives. In an administration intent on accumulating executive power, Ms. Miers's views on and role in these issues will be important for the Senate to examine."

The challenge facing Democrats is how to oppose a nominee who Americans know little about. That's especially true for senators who are running for reelection next year in states Bush carried in 2004, such as Ben Nelson of Nebraska and Bill Nelson of Florida, both of whom voted to confirm Roberts.

Democrats' best argument may be to raise the issue of favoritism in an administration under fire for installing Michael Brown as head of the Federal Emergency Management Agency despite his lack of emergency management credentials. Brown was the college roommate of Bush friend Joe Albaugh, who preceded Brown in the job.

While conservatives wanted a candidate with a strong anti-abortion record, Miers doesn't appear to have one, at least at first glance. In 1992, Miers fought an American Bar Association resolution that would have supported abortion rights, although her opposition is said to have had more to do with the association taking a position on the issue than the position itself. And Miers, who is single, reportedly gave money during the 1988 election cycle to Al Gore, then-Sen. Lloyd Bentsen, D-Texas, and the Democratic National Committee (DNC).

It is unusual, but not unheard of, for a president to nominate a candidate with no experience as a judge. Rehnquist, for example, worked in the Justice Department under President Nixon, but never served as a judge.

Although Miers worked with senators in guiding Roberts' nomination through the confirmation process, she could face a tough road herself. That's because, unlike Roberts, she would succeed a justice who is the court's swing vote. In an interview that appeared last week in The Washington Post, DNC Chairman Howard Dean did not rule out the use of a filibuster. Miers appeared on Capitol Hill after her nomination Monday.

Much will depend on whether the so-called bipartisan "Gang of 14" senators decides that Miers trips the "extraordinary circumstances" clause of their agreement, which would allow senators to filibuster her nomination. Early reactions suggest that she, like Roberts, is not expected to be opposed by the group.

While initial reaction from some interest groups -- such as the conservative Family Research Council -- has been muted because of a lack of knowledge about Miers's record, organizations on both sides of the aisle are likely to be active given the importance of the nomination. "The next several months could determine the law of the land for the next several decades," Ralph G. Neas, president of the progressive People for the American Way, said in a statement Monday.

The group's vice president and legal director, Elliot Mincberg, said the nomination raises questions about whether Bush chose Miers based on friendship or because she is the most qualified person for the position. "The president knows a lot about how she thinks, what she thinks and what she believes," unlike senators or the public, he said, noting it is "too soon to tell" whether the group will launch television ads opposing her nomination.

Conservative groups were gearing up for a fight over Bush's second nominee even before the Senate confirmed Roberts. Progress for America said last week that it would launch a grassroots effort, including running television and radio ads, in 17 states to support Bush's associate justice candidate. The group has since launched the website justicemiers.com.

The White House consulted about 80 senators before naming O'Connor's successor, according to White House Press Secretary Scott McClellan. "We have been listening to the views and ideas from members of the Senate," he said last week.

But Sen. Chris Dodd, D-Conn., who backed Roberts, disputed that idea in an interview last week.

"Well if you call a phone call from Karl Rove a consultation," he said. "Fun conversation, I like him, he's smart, we chatted. ... I made some recommendations and thoughts. He didn't tell me who they were thinking of, so it wasn't a two-way conversation in that regard."

Mary Lynn F. Jones is a Washington D.C.-based writer.

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